protest petition part i

7/27/2019 Protest Petition PART I

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IN THE COURT OF THE 11th

METROPOLITAN

MAGISTRATE, AHMEDABAD

MRS. ZAKIA AHSAN JAFRI

V/S

MR. NARENDRA MODI & OTHERS

ON THE COMPLAINT DATED 8.6.2006 &

AGAINST THE

FINAL REPORT

OF THE

SPECIAL INVESTIGATION TEAM DATED

8.2.2012

(PART I)

PROTEST PETITION


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MAIN INDEX TO PROTEST PETITION

Sr.No. Subject Page Nos

1.Opening Page of the Protest Petition Filed on 15.4.2013

Main Petition:- PART I

2. Main Petition:- PART II

Main Petition Continues

PLUS

Compilation of Supreme Court Orders inSLP1088/2008 & SLP 8989/2013

Graphic Depicting Distances from Sola CivilHospital to the Sola Civil Police Station,Commissioner of Police, Ahmedabads Office,

Airport, Two Crematoriums at Hatkeshwar nearRamol and Gota; Naroda & Gulberg

Chart of PCR (Police Control Room Messages)Showing Aggressive Mobilisation at the Sola CivilHospital

Chart of SIB Messages recording the arrival of theSabarmati Express from Godhra at the

Ahmedabad Railway station at Kalupur on27.2.2002 & Murderous Sloganeering by the VHPand Others

Map showing Gujarat-wide Mobilisation throughaggressive Funeral Processions on 27.2.2002,28.2.2002 & 1.3.2992 onwards & attacks onMinorities

Map showing Scale of Violence all over Gujarat in2002

Map showing Details of Deaths, Missing Person,Destruction on Homes, Shrines in 2002

3. ANNEXURES -VOLUME I (Sr Nos 1- 51)

News reports related to Provocations, Sandesh Articles,SIB Statistics, Important Letters from SIB, RahulSharma, Statistics on Police Firing & Tables Extractedfrom the SIB Messages/PCR messages from the SITPapers, VHP Pamphlets & Petitioners Letters toInvestigating agency

1 304 pages

4. ANNEXURES -VOLUME II (Sr Nos 153 including CDs)

Articles & Video Transcripts related to Hate Speechesmade by A-1 Mr Modi and Other Accused & Conspirators

1 162 pages

5. ANNEXURES- VOLUME III

Sr Nos 1 Missing Call Records from SIT InvestigationPapers ( Reference: Annexure IV, Files V and VII)

Sr Nos 2 Call Records of Sanjiv Bhatt, OP Mathur &GC Raigar

1 149 pages


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Sr Nos 3 Call Records of A-1 Mr Modi

Sr Nos 4 - How Top Cops Deserted Gulberg

Sr Nos 5 Location of Powerful Persons & Accused atMeghnaninagar & Narol, Naroda on 27.2.2002/28.2.2002

Sr Nos 6 Location Graphs of Accused & Others inDifferent Time Slabs on 27.2.2002

6. ANNEXURES VOLUME IV

Tables of Accused & Powerful Persons (Who Spoke toWhom)

Individual Cal Records of Accused & Powerful Personsfor 27.2.2002


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This application/objections have been filed pursuant to the order dated 12.9.2011

passed by the Honble Supreme Court as well as the subsequent order dated

7.2.2013 passed by the Honble Supreme Court. (Annexure Compi lat ion

includes al l the Orders passed by the Honble Supreme Court in this case).

The Complainant submits that the Closure Report submitted by the SIT requires

to be rejected in too. The said Report concludes that no offence of any nature

has been made out against any of the accused. It is our submission that this

Honble Court take cognizance against each of the accused in relation to

offences which they have been alleged to have been guilty in the Complaint

dated 8.6.2006.

1. That at the outset, it may be pointed out that the complaint filed by

the petitioner was sent for investigation to the SIT by an order

dated 27.4.2009 passed by the Honble Supreme Court. After

conducting the investigation, SIT had submitted the reports before

the Honble Supreme Court. The said complainants case is,

therefore, a separate police case and should, therefore, be treated

as such. This case should not be confused/clubbed with the other

independent and individual cases based on separate F.I.R.s, filed,

prosecuted and even being tried which are related to the separate

incidents related to the Gujarat carnage of 2002. This has been

conclusively clarified by the Honble Supreme Court in its Order

dated 7.2.2013. The SIT is purposefully trying to confuse the

present case, which is independent of other cases and has to be

dealt with and tried as such, a separate criminal case.

2. The brief facts leading to the filing of final report by the SIT are that

the petitioner/ complainant had filed a complaint before the Police

authorities and when no action was taken, she had approached the

High Court of Gujarat under Article 226 of the Constitution read with

Section 482 of Cr.P.C. that her complaint should be investigated bythe Police/C.B.I. The High Court of Gujarat on 2.11.2007 directed

that the complaint can be treated as a private complaint and,

therefore, declined the reliefs sought for by the petitioner. This

order of the High Court of Gujarat was challenged by the petitioner

before the Honble Supreme Court and the Honble Supreme Court,

vide order dated 27.4.2009, directed that the complaint of the

petitioner be investigated by the SIT.


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3. That thereafter, the SIT conducted investigations which resulted

into filing of 4 reports by the SIT which are as follows:

i) 12.5.2010

ii) 17.11.2010

iii) 24.4.2011

iv) 8.2.2012

4. The Honble Supreme Court finally disposed of the Special Leave

Petition on 12.9.2011 by permitting the petitioner to file a protest

petition in case a final report finding no accused guilty of committing

any crimes is submitted by the SIT.

5. That the SIT not only did not provide, but actively opposed

providing the complete documents collected during Investigation

including of the SIT reports as mentioned in Para 3 above and,

therefore, the petitioner again approached the Honble Supreme

Court for furnishing the above-said 4 reports. Other documents

were provided through an Order of the Ld. Magistrate dated

10.4.2012. The SIT that had been clearly directed by the Order of

the Honble Supreme to supply all documents and reports related to

the Investigation in effect resisted and delayed matters to such an

extent that between 8.2.2012, when its final report was filed, and

7.2.2013, when the Honble Supreme Court finally directed that all

reports should be provided to the Complainant, a year had passed.

6. That by an order dated 7.2.2013, the Honble Supreme Court

directed that all the reports which were submitted by the SIT be

supplied to the petitioner to enable her to file an effective Protest

Petition/Objections to the final report submitted by the SIT It is in

the above background that the Complainant/Petitioner is submitting

this Protest Petition.

7. That in deciding the Protest Petition the Honble Court has to

exercise its Independent mind on the Final Report submitted by the

Investigating Agency. The Court is not bound by the conclusions

drawn by the Investigating Agency. The Court has to look at the

material to satisfy itself whetherprima facie it is a case for taking

cognizance of the offence. The material has to be looked at, not

from the angle that it is sufficient for conviction but that the material

is sufficient for proceeding with the case. The Court cannot


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adjudicate on the material to find out whether an offence is made

out or not, which is the domain when the trial starts and evidence is

led by the parties.

Vide Judgements (Case Law)

8. That before going into the detailed submissions and factual

aspects, it is necessary to discuss what jurisdiction this Court has in

deciding the protest petition and in accepting or rejecting the final

report submitted by the SIT as an investigating agency. It has been

held by several judgments of the Honble Supreme Court as well as

the High Courts that at this juncture, the jurisdiction of the learned

Court is very limited. The Court can only examine whetherprima

facie, there is reasonable material to take cognizance of the

offence. In case, there is reasonable suspicion,prima facie a case

is made out from the material on record; the court has a duty to

issue process against the accused. The Court cannot look into and

discuss or adjudicate on the material on record to find out whether

an offence is made out or not. That is a domain when the trial starts

and evidence is led by the parties.

9. That the Petitioner/Complainant submits that this Court, while

deciding the protest petition and appreciating the final report

submitted by the SIT, has to look into following amongst other

issues:

(1) Whether on the basis of material which has been submitted by the

SIT, a case of reasonable suspicion/prima facie case is made out

against the accused and thus, requiring cognizance to be taken by

the Court. It is enough if the Court feels that it is necessary to

proceed against the accused and/or whether triable issues are

made out.

(2) Whether the SIT, during investigation, has collected all the relevant

material which it was required to do in conducting fair investigation.

(3) Whether it was within the jurisdiction of the Investigating agency to

adjudicate on the material which came out during the investigation,

i.e., to reject the statement of a particular witness or to accept the

statement of a particular witness in order to come to the conclusion


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that no offence is made out, particularly when the statement made

under section 161 of Cr.P.C. clearly pointed out to reasonable

suspicion/prima facie case of commission of the crime.

(4) Whether a case is made out for directing further investigation

under section 173(8) of Cr. P.C. as the SIT has omitted to consider

the relevant evidence which connects the accused with the crime.

(5) That in case this Court comes to the conclusion that the

investigation done by the SIT was not proper or important

facts/documents/links were not looked into, to favour the accused,or otherwise, whether a separate investigating agency will be

required for further investigation under section 173 (8) of Cr. P.C.

In that eventuality, this Court has also to decide whether the

prosecution can be controlled by the SIT which has conducted

investigation in such a blatantly biased manner.It is of the utmost

importance that the truth of the allegations against them is

determined by a competent forum. Such a course would subserve

public interest and public morality because the Chief Minister and

Ministers, the civil servants, the Magistracy and the Police of a

State should not function under a cloud. It is imperative, therefore,

that further investigation be conducted in a thoroughly impartial

manner. See: Vishwanath Chaturvedi v. Union of India: (2007)

3 SCALE 714 at 724 para 36 (Writ Petition under Article 32 of the

Constitution) = (2007) SCC.

Background of the Present Complaint

10. Mrs. Zakia Nasim Ehsan Jafri, widow of late Mr Ehsan Jafri,

formerly R/o Gulberg Society, Meghaninagar, Ahmedabad City and

now residing at 25, Alvi Row-house, Rander Road, Surat City,

Gujarat, submitted a complaint dated 08-06-2006 to Mr. P.C.

Pande, Director General of Police, Gujarat State, Police Bhavan,

Gandhinagar, for the registration of FlR u/s, 120(B) IPC read with

302, IPC & sec. 193 read with 114 IPC, 186 & 153-A, 186, 187 IPC

& u/s 6 of Commission of Inquiry Act, The Gujarat Police Act & The

Protection of Human Rights Act, 1951. On 01-03-2007, Mrs. Zakia

Nasim Ehsan Jafri and Citizens for Justice & Peace, through its

Secretary, Ms. Teesta Setalvad filed an application in the Hon'ble

Gujarat High Court bearing Spl. Criminal Application No. 421 of


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2007 vs State of Gujarat, DGP, Gujarat and CBI under Articles

226/227 of the Constitution of India r/w sec.482 Cr.P.C. with a

prayer to pass an order of Writ of mandamus and or appropriate

Writ, directing the DGP to register an FIR and further directing the

same to be investigated by an independent agency, i.e., CBI. The

Petitioners further prayed that pending admission and or final

disposaI of this petition, DGP be directed to register the FIR and

directions issued to CBI for investigation in the interest of justice

and grant such other and further relief as deemed fit in the interest

of justice. The Gujarat High Court rejected the Petition by an Order

dated 2.11.2007. Aggrieved by the Order of the Gujarat High Court,

the Petitioners through SLP 1088/2008 approached the Honble

Supreme Court for inter alia, registration of an offence and transfer

of investigation to an Independent agency. As mentioned in Para 4

above through an Order dated 27.4.2009, the Honble Supreme

Court directed that: Having heard learned Counsel for the parties

we direct that complaint dated 08.06.2006 which the petitioners

herein claim to have sent to the DGP of Gujarat shall be examined

by the Special Investigation Team (in short SlT') constituted

pursuant to the orders of this Court. The SIT shall look into the

matter and take steps as required in law and give its report to this

Court within three months."

11. The Honble Supreme Court of India, in its order dated 15-5-2009 in

Writ Petition (Crl.) No. 109/2003, reconstituted the SIT by inducting

two new Members, namely, Mr. Paramvir Singh, Ex-DGP/Special

Director, CBI and Mr. A.K. Malhotra, former DIG, CBI and by

relieving Mr. C.B. Satpathy, Ex-DGP, as per his request. The Govt.

of Gujarat issued a Notification regarding the reconstituted SIT on

27-05-2009. It is recalled that the SIT was originally constituted vide

order dated 26-03-2008 of the Honble Supreme Court of India

whereby 9 Godhra related cases were ordered to be further

investigated by the SIT, which was to consist of Dr. R.K. Raghavan,

Ex-Director, CBI (Chairman), Mr. C.B. Satpathy, Ex-DGP, Ms.

Geetha Johri, then IGP (now Addl. DGP (Convener), Mr. Shivanand

Jha, then IGP (now Addl. DGP) and Mr. Ashish Bhatia, IGP. In their

order dated 01-05-2009 in Writ Petition (Crl.) No.109 of 2003, the

Hon'ble Supreme Court of India had directed that the SIT would

continue to function and the Court entrusted to the SIT a larger role

in the supervision of trials/prosecutions, witness protection, etc. and


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to carry out any investigations that were yet to be completed or any

further investigation that may arise in the course of the trials.

12. The widespread violence that engulfed Gujarat spreading to 19 of

the states 25 districts 14 very seriously - post the tragic burning

to death of 59 persons in the S-6 Coach of the Sabarmati Express

is perhaps the worst ever record of reprisal communal violence.

Since 2002 when the National Human Rights Commission filed its

Interim and Final reports and 2003 and 2004 when the Honble

Supreme Court first pulled up the state government for absence to

observe its Raj Dharma and accused it of criminal negligence

The Neros in Gujarat fiddled as Gujarat burned (Zahira Habibullah

Shaikh v/s State of Gujarat, April 12 2004 Supreme Court) serious

allegations of top level criminal conspiracy in masterminding the

violence have been made against the chief functionaries of the

government. On 8.6.2006 a Complaint was sought to be filed (Mrs

Zakia Ehsan Jafri) and this complaint that is the core of this Protest

Petition lays down the basis for the Criminal Conspiracy alleged.

The NHRC concluded in its Report dated 31.5. 2002 that there

was a comprehensive failure of the State to protect the

Constitutional rights of the people of Gujarat. The NHRC in its

order dated 31stMay,2002 has also noted that its special

representative had observed in a Report to the Commission dated

24thApril 2002 that almost 90% of those arrested even in heinous

offences like murder, arson, etc have managed to get bailed out as

soon as they were arrested. Reports have also appeared in the

media that those who have been released on bail were given warm

public welcomes by some political leaders. This is in sharp contrast

to the assertion made by the State Government in its Report of 12th

April 2002 that bail applications of all accused persons are being

strongly defended and rejected.

Incidents specified in Complaint pp. 138 to 140, (para 13)

Incidents widespread in 19 of the States districts (coloured

maps)

Naroda Patia case: Naroda P.S. Cr.No.I 100/02: 96 Killed,

including women and children. Naroda Patiya (where 96

men women & children were massacred and a number of

women were raped, killed and burnt.


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P.I. Mysorewalla & the SRPF Men present provided no

assistance to the victims and instead taunted them & forced

them towards the rioting mob & death.

Gulberg Society case: Meghaninagar P.S. Cr.No.I 67/2002:

His death not even condoled in a reference in the House

(State Assembly). Totally 69 persons killed. From the 28th

morning rampaging mobs of those associated with the

Bajrang Dal, VHP, BJP attacked Muslim localities, houses

and business establishments. Muslim men were killed &

beaten and women were raped & killed. Gory murders,

rapes and molestations took place at Gulberg Society

Chamanpura, Meghaninagar (where 69 persons including Ex

MP Jafri were killed & 10 12 women were raped in a mob

attack which lasted for 7 hours - till 4.30 p.m. Jafri had made

numerous calls for help to the Commissioner Mr. PC Pande,

to the Home Minister & the Chief Minister. At about 2.30 Jafri

was stripped, paraded naked & cut into pieces. Police stood

by and did not even try to stop the rioters.

The Chief Minister was also dismissive of Mr Jafris calls for

help and in fact later attributed the violence to firing by Mr

Jafri. Minimal Police intervention took place only after 4.30

p.m.

Post March 1 2002 : Panchmahal Dailol where a number of

Muslims attempting to flee were killed & women raped.

Mehsana where 14 Muslims were killed in Visnagar & 33

electrocuted in Sardarpur, Sardarpura Village, Mehsana

District, Visnagar P.S. Cr.No.I 46/2002: 33 persons killed.

Best Bakery case, Vadodara: 14 persons burnt alive

accused acquitted many convicted after the re-trial and

transfer to Mumbai (2006).

Kidiyad case, Sabarkantha District: 6065 persons burnt

alive.

Odh Village, Anand District: 27 persons burnt alive on March

1. Complainants said only 4 deaths confirmed and bodies of

other victims disposed of at unknown location. Two FIRs


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Cr.No.23/2002 & Cr.No.27/2002 lodged. JMFC, Umreth

rejected remand application. During pendency of remand

application, 18 accused released on interim bail for 8 days to

celebrate Shivrathri by Order of Court.

Dahod where men were killed & women raped.

Banaskantha where brutal killings took place.

Kheda where massacred were allowed to occur.

Patan, where two boys were shot dead and the FIR names

the BJP MLA of Radhanpur and the chiefof the BJPs

Radhanpur Unit & other VHP & BD members.

Vadodara (where 14 people were burnt alive at the Best

Bakery).

Vadodara Rural, Bharuch, Kheda, Bhavnagar, Rajkot and

many other places.

Police Firing in Ahmedabad. The Police were either absent

and/or inactive, or actually supported the rioters by shooting

any Muslim offering any resistance. Significantly on Feb 28th

in Ahmedabad of the 40 persons shot dead 36 were Muslims

although it was the Muslim community which was being

targeted by huge well armed mobs. Repeated calls to the

Commissioner of Police Ahmedabad & even the Chief

Minster resulted in no assistance or response. The murders,

mayhem, rape & molestations took place openly and over a

number of hours. Details of these heinous crimes have been

recorded in the Report of the Citizens Tribunal. The

Concerned Citizens Tribunal report has been signed by all

members of the panel included Justices (retd) VR Krishna

Iyer, PB Sawant and Hosbet Suresh. Additional DG SIB

recorded in his Secret Report of 24th April 2002 that as on

23rd April 2002, 636 Muslims were killed in the riots (of these

91 were killed in police firing) as against 181 Hindus killed (

of which 76 were killed in police firing. Nearly 329 Muslims

had sustained injuries in arson as against 74 Hindus. The

loss of property of Muslims is accounted to be approximately


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Rs. 600 crores as against Rs. 40 crores of loss of property of

Hindus.

By August 2002 the Government itself had recorded those

185 cases of attacks on women of which 100 were in

Ahmedabad city; that there had been 57 attacks on

children of which 33 were in Ahmedabad and that 225

women and 65 children killed. The Government had also

recorded 11 cases of rape of women: 3 cases from Dahod,

1 from Anand, 4 in the Panchmahals & 3 in Ahmedabad. In

fact the rape / molestation of women were far more

pervasive. Many of the victims were killed & burnt beyond

recognition. Others were too terrified to record complaints.

Then Additional DG Sreekumar also subsequently reported

to the Additional Secretary Law and Order and the Chief

Election Commission (CEC) in August 2002 that communal

incidents had taken place in 993 villages and 151 towns

covering 284 police stations out of a total of 464 and werespread over 153 assembly constituencies out of a total of

182. By Aug 2002 (as recorded in the Report of the

Womens Parliamentary Committee) as many as 132,532

persons had been displaced / forced to leave their houses &

were living in 121 riot relief camps of which 58 were in

Ahmedabad city.

By 1stJune 2002 (as recorded in the Report of the Womens

Parliamentary Committee) there had been 4954 cases

(2023 urban and 2931 rural) of residential houses having

been completely destroyed. There were a further 18,924

cases of partially damaged houses (11,199 urban & 7095

rural) - i.e. more than 23,000 houses had been destroyed or

damaged by the rioters. Thereafter a further 5000 urban

houses and a 1000 rural houses were destroyed or

damaged.


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A. Failure to Take Steps Statutorily Required under Law to Prevent

the Outbreak and Spread of Violence

Failure to Declare Curfew on Time Failure to Arrest Persons

from List of Communal Goondas Available with Every Police

Station.

Failure to Record Evidence as Per Law.

Failure to Register Crimes with Names of All Accused. Police

officials failed to properly register FIRs.

The names of VHP, Bajrang Dal, BJP members & their

associates who had been involved in the heinous attacks were

not recorded in the Firs. No steps were taken to arrest most of

them. Even the few arrested were bailed out very soon without

any opposition from the Prosecutors (quite a few of whom were

supporters of the VHP/ BD/ BJP) and the police.

The NHRC in its order dated 31st May 2002 records that its

Special Representative had reported on 24thApril 2002 that in

respect of most of the sensational cases, the FIRs registered on

behalf of the State by the Police Officers concerned, the

accused persons were shown as unknown. His report adds

that this is the general pattern seen all over the State. Even

when complaints of aggrieved parties have been recorded, it

has been alleged that the names of the offenders are not

included. In almost all cases, copies of the FIR which the

complainant is entitled to has not been given. There has been

widespread public outrage, in particular, in respect of atrocities

against women, including acts of rape, in respect of which FIRs

were neither promptly nor accurately recorded and the victims

harassed and intimidated.

B. Failure to Take Statutorily required Steps to Control Mob

Violence

Declaration of Curfew.

Orders for the Army to Take over from Police on Time.


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Preventive Arrests.

Firing etc.

(Police Act, Circulars with Rules on Requirements during

Communal Violence, CrPC etc)

13. In some of the criminal cases which reached trial the prosecutor/

prosecution and the police effectively ensured the acquittal of the

accused. In the Best Bakery case where a large mob killed 14

persons in Vadodara on 1st March 2002, all the accused were

acquitted. The NHRC, the 1st Petitioner, Survivors and NGOs filed

Petitions to the Supreme Court.

14. By a judgement & order the Supreme Court [dated 12-04-2004]

allowed the Petitions, set aside the acquittal, directed a retrial by a

Court under the jurisdiction of the Bombay High Court and also

directed the appointment of another public prosecutor after taking

into account the suggestions of the victims/ affected persons. TheCourt observed that it was apparent from what had transpired that

the investigation had been done in a manner with the object of

helping the accused persons. The Court held The investigation

appears to be perfunctory and anything but impartial without any

definite object of finding the truth and bringing to book those

responsible for the crime. The public prosecutor appears to have

acted more as a defence counsel than one whose duty was to

present the truth before the Court. The Court in turn appeared to be

a silent spectator, mute to the manipulations and preferred to be

indifferent to sacrilege being committed to justice. The role of the

State Government also leaves much to be desired. .. .. . The

Court observed: Those who are responsible for protecting life and

properties and ensuring that investigation is fair and proper seem to

have shown no real anxiety. Large number of people had lost their

lives. Whether the accused persons were really assailants or not

could have been established by a fair and impartial investigation.

The modern day "Neros" were looking elsewhere when Best

Bakery and innocent children and helpless women were burning,

and were probably deliberating how the perpetrators of the crime

can be saved or protected. Law and Justice become flies in the

hands of these "wanton boys". When fences start to swallow the

crops, no scope will be left for survival of law and order or truth and


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justice. Public order as well as public interest become martyrs and

monuments. Following the re-trial conviction resulted in

Maharashtra (February 24, 2006).

15. Another shameful case of gang rape was transferred out of the

state of Gujarat to Mumbai i.e. the Bilkees Rasool case.

Significantly the CBI which was entrusted with the investigation has

found top police officials and government doctors responsible for

destruction of evidence.

16. Survivors and citizens groups approached the Supreme Court for

transfer of investigation. Eight other major criminal trials that were

tried, some are still ongoing) after further investigation was ordered

and in many due to the monitoring by the Supreme Court and

witness protection provided large number of convictions have taken

place, are being currently monitored by the Honble Apex Court and

investigations and further investigations were ordered.

17. The Honble Supreme Court had, in 2004, also ordered that a

special cell of 7 Range Inspector Generals should be set up to look

into the FIRs and other materials of 2000 cases in which A

summary Reports had been filed resulting in closure of the cases,

to decide whether further investigation was required and to submit

quarterly reports regarding the same to the Court.

18. A-1 Mr Narendra Modi, chief minister of the State at the time of

commission of the alleged offences and still so, with continued

subversion and denial of justice until today is arraigned as Accused

No.1 in the Complaint. The complaint contains specific allegations

complicity and involvement of Accused No.1 in the commission of

the alleged offences. See the complaint paragraph 43, paras 45 to

52, paras 54 & 55, paras 65 & 66, para 67(5), para 78, para 83,

para 88. Following the Investigations even more Crimes are Made

out under the IPCSection 34, 107 read with Section 120B,

Sections 35, 36, 27 and 38 as also Section 166, 176, 218 and 217

of the IPC.

19. Likewise, Accused Nos.2 to 12 are persons involved in the

conspiracy who were Ministers at the material time (one is since

deceased) Among the remaining accused are cabinet ministers,


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some MLAs the high ranking bureaucrats and police officers who

were part of the conspiracy that led to the perpetration of the

various offences alleged. The allegations made against them by the

complainant/petitioners cast a cloud on their integrity and on their

allegiance and oath to the Constitution and to the protection of

Constitutional values and human rights.

20. Criminal Intent and Conspiracy Can Be Determined by the

Prejudicial Acts of Commission and Omission by theMan at the

Helm (Speeches, Disparate Amounts of Relief Granted to Godhra

and Post Godhra Victims), Failure to Visit the Minority Refugees in

Relief Camps, Inflammatory Speeches to Doordarshan, Zee TV,

Other Channels and even at Becharaji in September 2002. Amicus

Curiae Shri Raju Ramachandran has recommended Prosecution of

the Chief Minister under Sections 166 and 153A and B of the Indian

Penal Code Prosecution of Joint Commissioner of Police MK

Tandon and PB Gondia has also been recommended under

Sections 304rA of the IPC.

21. As the allegations in the complaint dated 08-06-2006 of Mrs. Zakia

Nasim Jafri in the matter relating to SLP (Crl.) No. 1088 of 2008 in

which the Citizens for Justice and Peace through its Secretary,

Teesta Setalvad were co-petitioners, were of an extremely sensitive

nature and were against the present Chief Minister of Gujarat,

several Ministers and top IPS and IAS officers etc., it was decided

that the matter would be dealt with in a highly confidential manner

by Mr. A.K. Malhotra, former DIG, CBI and Member, SIT, Mr.

Paramvir Singh, former Special Director, CBI and Member, SIT and

Dr. R.K. Raghavan, Chairman, SIT. However, Mr. Paramvir Singh,

Member, SIT resigned in the last week of February, 2010.

22. Though this inquiry had the mandate of the Honble Supreme Court

of India, several difficulties/constraints were experienced in the

enquiry, some of which are given below. (SIT Reports dated

12.5.2010 and 8.2.2012). Yet the SIT does not interrogate the

following lapses or the persons responsible for them.

(i) The police wireless messages for the year 2002 were not

made available by the Govt. of Gujarat as the same had

been reportedly destroyed. (In late March 2013, Accused

Nos-29 then Commissioner of Police Mr. PC Pande


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suddenly produced CDs with 3,500 pages of scanned

documents containing PCR messages related to

Ahmedabad).

(ii) No record/documentation/minutes of the crucial law & order

meetings held by Govt. during the riots had been kept.

(iii) Some of the public servants, who had retired long back,

claimed loss of memory as they did not want to get

involved in any controversy.

(iv) The other category of public servants, who have since

2002 retired and given good post-retirement assignments,

felt obliged to the State government and the present Chief

Minister and therefore their testimony lacks credibility.

(v) The serving public servants, who have been empanelled

for the higher posts, did not want to come into conflict with

the politicians in power and incur their wrath which affected

their frank response.

(vi) Those public servants considered upright by the

complainants and cited as a witness in their support,

confirmed various controversial incidents/events, yet they

did not attribute the same to their transfers/postings to

insignificant posts.

23. In the complaint dated 8.6.2006, submitted to the Director General

of Police, Gujarat, the Complainant has furnished explicitly further

evidence, oral and documentary, regarding the nature and extent of

the involvement of the accused named in her complaint. The said

further evidence comprises the following:

i) Parole and affidavit evidence as well as documentary

evidence led before the Nanavati Shah Commission.

ii) Specific allegations against individuals accused.

iii) Specifics of punitive transfers and disciplinary proceedings

against top ranking police officers who were non co-


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operative.

iv) Specifics of favours done to collaborating IAS and IPS

officers.

v) Subjugation of the IPS officers association.

vi) Collaboration and complicit role of IAS officers functioning as

Collectors/District Magistrates.

24. During the course and hearing of SLP 1088/2008 and thereafter,

Complainant Mrs. Zakia Ahsan Jafri, the Present Petitioner and Co-

Petitioners in SLP 1088/2008, Ms Teesta Setalvad, Secretary

Citizens for Justice & Peace have consistently provided more and

more information and evidence as and when these have been

made available or come to their notice. A compilation of these

communications to the Investigating Agency are filed with this

Protest petition in a separate compilation.

25. It is well settled that even in cases where a first complaint is

registered and investigation initiated, it is possible to file a further

complaint by the same complainant based on the material gathered

during the course of investigation. Even with regard to a complaint,

if it is found on further investigation that there was a larger

conspiracy than the one referred to in the previous complaint, then

a further investigation under the Code culminating in another

complaint is permissible. A fortiori, therefore, this principle applies

also to a subsequent complaint by a different complainant. Ram Lal

Narang v. State (Delhi Admn.): (1979) 2 SCC 322 at 330 to 338,

paras 11 to 22. (2 Judges), affirmed in Upkar Singh v. Ved

Prakash: (2004) 13 SCC 292 at 297-299 paras 16 to 23 (3

Judges).

26. The complainant -- Petitioner No.1 -- is a victim of the offences

alleged against the persons accused, an eyewitness to the

gruesome murder of her husband and a personally and directly

aggrieved citizen of India.

27. To recap in brief the serious allegations contained in the Complaint

dated 8.6.2006 (Annexure III, File I, SIT Papers):


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(i) Mr. Narendra Modi, Chief Minister of the State at the time of

commission of the alleged offences and still so, is arraigned

as Accused No.1 in the Complaint. The complaint contains

specific allegations of masterminding a criminal conspiracy

and executing it misusing his position, complicity and

involvement of Accused No.1 in the commission of the

alleged offences. See the complaint paragraph 43, Paras 45

to 52, Paras 54 & 55 at pp.174 to 178, Paras 65 & 66, Para

67(5), Para 78, Para 83, Para 88. Likewise, Accused Nos.2

to 12 are persons involved in the conspiracy who were

Ministers at the material time or are so now. Among the

remaining accused are the high ranking bureaucrats and

police officers who were part of the conspiracy that led to the

perpetration of the various offences alleged. The allegations

made against them by the complainant/ petitioner cast a

cloud on their integrity and on their allegiance and oath to

the Constitution and to the protection of Constitutional values

and human rights.

(ii) (Para 8 of the Complaint) -- Officers have been directly

influenced to depose with falsified facts and thereby commit

the criminal act of perjury.

(iii) (Para 10 of the Complaint) -- Top level meetings were held

between the Accused No.1 chief minister, some of his

cabinet colleagues and top level bureaucrats at which illegal

instructions were issued where policemen and bureaucrats

were instructed to in fact perform the illegal acts and

omissions that constitute the alleged offences. Evidence of

this was documented by a Concerned Citizens Tribunal

(CCT) constituted and headed by former Judges of the

Hon'ble Supreme Court before which a former Minister

testified about the details. He was the late Mr. Haren

Pandya. Illegal attempts to influence the police by senior

cabinet colleagues of the Chief Minister were reported by the

press.

(iv) (Para 12 of the Complaint) -- Statement made by a former

cabinet minister of the government of Gujarat that a high

level meeting was convened by the chief minister at which


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the then chief secretary and the then Home Secretary and

senior policemen were summoned and to whom clear

instructions were given not to deal with the Hindu rioting

mobs.

(v) (Paras 15-56 of the Complaint) -- Allegations against

accused based on affidavits filed before the Nanavati Shah

Commission.

(vi) (Para 16 of the Complaint) -- Rahul Sharma stated in his

cross examination before the Nanavati Commission that the

whole attack on the Madrassa at Bhavnagar appeared to

be an organized one. Gordhan Zadaphia was complaining

about more number of deaths of Hindus compared to

Muslims as a result of police firing in Bhavnagar. Mr. Sharma

also states in his affidavit before the Commission annexed to

the Complaint that then DGP Chakravarti A-25 told him on

1.3.2002 (affidavit dated 2.7.2002) when he desperately

asked for additional forces to contain the deliberately

provoked and perpetrated violence in Bhavnagar that the

bureaucracy had been neutralized.

(vii) (Para 21 of the Complaint) -- Mr. Khurshid Mysorewala

stated in his affidavit that he was not able to stop the

heinous crime of murders at Naroda Patiya. (The aff idavit

fi led by th e SIT is dated August 2002 ; SIT appears to

have conscio usly no t f i led his add i t ional aff idavi t dated

12.1.2004 wh ich th e Comp lainant has app lied for and

wil l be fi led in a separate compilation ).

(viii) (Para 22 of the Complaint) -- Mr. M. T. Rana stated in his

affidavit that persons of VHP were seen in the mob at

Naroda Patiya. In fact the police failed to save the lives of

the people of Naroda Patiya.

(ix) (Para 24 of the Complaint) Mr. Shivanand Jha in his cross

examination before the Nanavati Commission admits that he

did not take any special measures to maintain peace on the

day of the Bandh, i.e., 28.2.2002; that when he saw a huge

and aggressive mob on 28.2.2002 and dispersed it he did


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not arrest anyone from the RSS-VHP-BJP led mob.

(x) (Para 25 of the Complaint) Mr. M. K. Tandon stated in his

cross-examination that when the incidents of Naroda Patiya

and Gulberg Society, Meghaninagar occurred, neither he nor

the Police Commissioner were present. When the attack on

Gulberg Society took place, two Dy.S.P.s, one PI and one

CISF police officer were present but strict measures were

not taken to disperse the mob.

(xi) (Para 28) -- Mr. Chakravarti, who was the DGP at that time,

had not given any special instructions for the preservation of

law and order, no strict instructions on how mobs should be

dealt with, despite evidence coming in from field offices of

the state intelligence bureau that aggressive communal

mobilisation had begun post Godhra incident on 27.2.2002

from 11 a.m.12 noon onwards.

(xii) (Para 38) -- Mr. R. B. Sreekumar stated in para-4 of his

affidavit that a few senior police officers approached him and

requested him to avoid any deposition before the

Commission, to prevent damaging the political interest of the

Govt. This amounts to intimidation, preventing and

obstructing a public servant from performing his lawful duty

and in fact using power and influence of A-1 to ask a public

servant under him to commit perjury.

(xiii) (Paras 38,39) -- Mr. Sreekumar stated in his affidavit that he

was intimidated and warned by Mr. Murmu and Mr. Arvind

Pandya, government pleader to tell lies on oath and to avoid

telling the whole truth.

(xiv) (Para 46) -- In para 38 of Mr. Sreekumars affidavit -- ''all

Govt. officers appearing as witness were tutored by Mr.

Murmu, the reluctance of most of the govt. officials viz. Mr.

K. Chakravarti, the then DGP, Mr. P. C. Pande, the then

Commissioner of Police, Ahmedabad City and many other

senior officials to tell truth to the Commission may kindly be

appreciated in the light of guidance to them by Mr. Murmu.

(xv)(Para170) -- The Chief Minister had said in the meeting

on the night of 27.2.2002 that in communal riots police


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20

takes action against Hindus and Muslims on one-to-one

basis. This will not to do now (para 84 of Mr. Sreekumar)

allow Hindus to give vent to their anger.

(xv) (Para 59) -- Ahmedabad's Commissioner of Police, Mr. P. C.

Pande commented on News Hour(Star News) (1.3.2002)

that These people also, they somehow get carried away by

the overall general sentiment. That's the whole trouble. The

police is equally influenced by the overall general

sentiments.

(xvi) (Para 65) -- The partisan and diabolical role of the Chief

Minister and members of the political party that he

represents and ideologically affiliated organizations like

Rashtriya Swayamsevak Sangh (RSS), Vishwa Hindu

Parishad (VHP), Bajrang Dal (BD) etc.

(xvii) (Para 67) -- Cases of punitive transfers and disciplinary

proceedings against top ranking police officers who were

non co-operative.

(xviii) (Para 68) -- Rewards for collaborating with the illegal plans

of the CM/BJP during 2002 riots and afterwards.

(xix) (Para 69) Subjugation of IPS Association.

(xx) (Para 70) -- Collaboration by IAS officers & Collectors.

(xxi) (Para 71) -- The govt. officers appearing as witnesses to the

commission were tutored by Mr. GC Murmu and Mr. Arvind

Pandya.

(xxii) (Paras 71 to 83) -- The State Government vis--vis the

Nanavati Commission.

(xxiii) (Para 83) -- Sreekumar's third affidavit to Nanavati

Commission giving details of illegal instructions given by

officers viz. Chief Minister, Chief Secretary, Mr. Chakravarti,

..


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(xxiv) (Paras 84-85) -- Slack review of post-riot cases ordered by

Supreme Court in August 2004.

(xxv) (Para 88) -- Allegations against all accused named in the

complaint

28. COMPLAINT dated 8.6.2006: Offences alleged

Section 34 r/w 120 B Common Intent and Criminal Conspiracy

o Secion 107 Abetment

Section 35, 36, 37 and 38 on Intent and Crimes

Section 302 r/w Sec.120-B - Murder/Criminal conspiracy.

Section 193 Punishment for false evidence r/w

Section 114 Abettor present when offence is committed, and r/w

Section 6 of the Commissions of Inquiry Act, 1952.

Sections 167, 168,175, 176, 177 (Furnishing False Information ),

217, 218, 219, 220, 221, 222, (Chapter XII

Offences Committed by Public Servants)

Punishment for false evidence (Section 193, IPC r/w Section 6 of

the

o Commissions of Inquiry Act, 1952).

o Section 166 (Public servant disobeying law, with intent to cause

injury to any person)

o Giving false information about an offence committed (Section 203,

IPC).

o Sections 338, 503,

o 506, 507 (Criminal Intimidation)

o Section 186 Obstructing public servant in discharge of public

functions.

o Section 187 Omission to assist public servant when bound by law

to give assistance.

o Section 199 (False Statement made in Evidence)

o Section 153A, B,C, Section 295, 298 and 505 Promoting

disharmony or feelings of enmity, hatred or ill-will between different

religious, racial,language or regional groups or castes or

communities disturbing the public tranquillity.

o Section 3, Prevention of Damage to Public Property Act 1984(

Mischief causing damage to public property )

o Additional Sections that become applicable after scrutiny of the

Voluminous Evidence.


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29. Legal Background: The complaint dated 08.06.2006 is clearly

information relating to the commission of a cognizable offence

within the meaning and intent of Section 154 (1) Cr.P.C. The

D.G.P., Gujarat therefore was statutorily obliged to direct the

Officers in-charge of the concerned Police Stations to register the

respective cases as laid in the said complaint and then to proceed

with the investigation. See: Parkash Singh Badal v. State of

Punjab: (2007) 1 SCC 1 at 39-41, paras 63 to 68.

A. As the said information relates to cognizable offences

under Section 157(1) Cr.P.C. such officers are required

to forthwith send a report to the Magistrate empowered to

take cognizance of such offence upon a Police report and

to proceed to the spot, to investigate the facts and

circumstances of the case and, if necessary, to take

measures for the discovery and arrest of the offender.

Section 156(1) which is to be read in conjunction with

Section 157(1) requires that the said Officers may, even

without the order of a Magistrate, investigate any

cognizable case which a court having jurisdiction over the

local area within the limits of the Police station concerned

would have power to enquire into or try under the

provisions of chapter XIII of the Code. See: Parkash

Singh Badal, supra, pp.41 to 42, paras 70-71.

B. The ultimate test is whether the allegations in the

complaint/ information have any substance. An

investigation on such information cannot be shut out at

the threshold or on a plea of mala fides. See: Parkash

Singh Badal, supra, p.43, para 74.

C. Petitioner No.1s said complaint/information and the

allegations therein against the accused arrayed in the

said complaint/information, as to their complicity and

conspiracy in the commission of the alleged offences, are

not the mere ipse dixitof the complainant/the petitioners.

On the contrary, they are based upon and buttressed by

the following record, inter alia:-


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(a)judicial record and judicial pronouncement of the Honble

Supreme Court of India: See: Zahira Habib ul lah

Sheikh v . State of Gujarat: (2004) 4 SCC 158.

(b) Investigational records of a statutorily constituted

Commission of Inquiry, viz., The Nanavati Shah

Commission set up under the Commissions of Inquiry

Act, 1952.

(c) The records/report of the National Human Rights

Commission, constituted under the Protection of Human

Rights Act, 1993.

(d) The records and report of the Concerned Citizens

TribunalGujarat, 2002 constituted of two retired

Judges of the Supreme Court; a retired Judge of the

Bombay High Court, a Senior Advocate, a retired IPS

officer and former DGP, two reputed academicians and

an equally reputed social activist.

(e) The voluminous records of Investigation collected

following the directions of the Honble Supreme Court on

27.4.2009. These were obtained by the Complainant with

great difficulty and the lapse of a year, given the

resistance of the SIT to part with them despite the clear

Order of the Honble Supreme Court on 12.9.201.

(f) Last, but not the least, the Complainants own experience

as a victim in the Gulberg Society carnage in which her

husband was killed.

(g) Despite all this information relating to the commission of

several cognizance offences, which informed and

permeated the Petitioner No.1s complaint/information,

the D.G.P., Gujarat and the complicit State machinery

refrained from registering the FIR and proceeding to

investigate the case and the Complainant had to go to

onerous and painful lengths to reach the present stage.


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30. In the Best Bakery case, the investigation of which forms a part of

the subject matter of the present complaint/petition, the Supreme

Court has explicitly faulted and indicted the various State

organs/agencies and officials concerned, who are also arraigned as

accused in the present complaint, for their acts of commission and

omission in purported discharge of their constitutional and statutory

obligations:See: Zahira Habibullah Sheikh (supra): (2004) 4 SCC

158 at pp.197-201, paras 68-74.

i. In the same judgment, the Supreme Court has also

enunciated the following fundamental legal principles,

inter alia.

ii. Discovery, vindication and establishment of truth are the

main purposes underlying existence of courts of justice;

iii. In a criminal case the fate of the proceedings cannot

always be left entirely in the hands of the parties, crimes

being public wrongs in breach and violation of public

rights and duties, which affect the whole community as a

community and are harmful to the society in general. The

concept of fair trial entails familiar triangulation of

interests of the accused, the victim and the society and it

is the community that acts through the State and

prosecuting agencies. Interests of society are not to be

treated completely with disdain and aspersona non

grata. Courts have always been considered to have an

overriding duty to maintain public confidence in the

administration of justice often referred to as the duty to

vindicate and uphold the majesty of the law.

iv. The principles of rule of law and due process are closely

linked with human rights protection. Such rights can be

protected effectively when a citizen has recourse to

courts of law It will not be correct to say that it is only

the accused who must be fairly dealt with. That would be

turning a Nelsons eye to the needs of the society at large

and the victims or their family members and relatives.

Each one has an inbuilt right to be dealt with fairly in a

criminal trial. Denial of a fair trial is as much injustice to


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the accused as is to the victim and society. Fair trial

obviously would mean a trial before an impartial judge, a

fair prosecutor and atmosphere of judicial calm

v. The court has a greater duty and responsibility i.e. to

render justice, in a case where the role of the prosecuting

agency itself is put in issue and is said to be hand in

glove with the accused, parading a mock fight and

making a mockery of the criminal justice administration

itself If deficiency in investigation or prosecution is

visible or can be perceived by lifting the veil trying to

hide the realities or covering the obvious deficiencies,

courts have to deal with the same with an iron hand

appropriately within the framework of law. It is as much

the duty of the prosecutor as of the court to ensure that

full and material facts are brought on record so that there

might not be miscarriage of justice. (See Shakila Abdul

Gafar Khan v. Vasant Raghunath Dhoble: (2003) 7

SCC 749).

See: Zahira Habibullah Sheikh supra, pp.182 to 184,

paras 30 to 36, page 192, paras 55&56.

vi. Despite the above declaration of law under Article 141 of

the Constitution with specific reference to the

Respondents 1 & 2, in the present Spl. Crl. A. and to the

accused and their ilk arraigned in Petitioner No.1s

complaint/information dated 08.06.2006, in aid of which

declaration and law the said Respondents and the said

accused were required to act under Article 144 of the

Constitution of India, they have brazenly and flagrantly

flouted and disobeyed the Honble Supreme Court and its

directives.

vii. The default and failure of the government of Gujarat

under Accused No 1 to register the FIR despite the

aforesaid information made by the Complainant/

Petitioner No.1, prima facie establishes the complicity of

the State Agencies in the commission of the offences

alleged and/or their endeavour to shield and protect the

offenders, including themselves.


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viii. Even today the power and intimidation used by A-1

against the Complainant and those assisting her,

including Citizens for Justice and Peace, is tremendous.

Further, the Complainant urges that: The accused

named in the FIR are very head strong persons and

considering their clout in the administration it would be

almost impossible for the States police to investigate the

offence freely and fairly. Since the local police personnel

are prima facie complicit and allegedly involved in the

commission of the heinous offences, the larger

requirements of justice demand that the investigation be

entrusted to an independent agency like the CBI so that

all concerned including the Petitioner No.1 and her family

may feel assured that an independent agency is looking

into the matter and that would lend the final outcome of

the investigation credibility. See: R.S. Sodhi v. State of

U.P.: (1994) Supp.1 SCC 143 (W.P. (Crl.) filed under

Article 32 of the Constitution).

ix. At bottom, considering the complicity and connivance of

the political administrative and police organs of the

Government of Gujarat in the perpetration of the alleged

offences and their equally masterly inactivity in

registering proper FIRs and investigating the cases of the

said offences, the question is: Quis custodiet ipsos

Custodes? (Who will guard the guardians themselves?)

See: Union of India v. Tulsiram Patel: (1985) 3 SCC

398 (CB) at 524, para 176 (per Madon, J. per majority).

31. The Petitioner submits that the Closure Report needs to be rejected

and the Protest Petition allowed on the following grounds, which

are in addition to the reasons and grounds set out elsewhere in this

Petition:

a) The documents and annexures as submitted by the SIT

along with the closure report make out a clear case for

taking cognizance against all the accused;

b) Without prejudice to the above, the SIT while

investigating, has not examined all the necessary


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witnesses or called for all the necessary documents as

set out in the Petition. In view of this the Investigation is

defective and incomplete. Further investigation therefore

needs to be ordered to arrive at the whole truth;

c) Without prejudice to the above, the SITs analysis of the

statements of witnesses and other documents is

hopelessly biased, inaccurate, and suffers from total non

application of mind.

d) SIT has taken great pains to disbelieve and discredit any

witnesses who have spoken against the Accused No.1 or

for that matter against any accused. Besides, the

witnesses who were favouring Accused were not

confroned with relevant documents and statements.

e) SIT was required to ascertain whether there is any

substance to proceed against the accused persons and

once it comes to the conclusion that such substance

exists it should have proceeded to file a Charge Sheet.

Such substance exists against all the accused. There are

witnesses and documents to cast reasonable doubt

against the conduct of all the accused and pointing

towards their culpability. For instance, the statements of

senior officers like RB Sreekumar, Rahul Sharma, Sanjiv

Bhatt as well as the Tehelka tapes (validated by the

Sessions Court) are enough to file a charge sheet/ take

cognizance. Instead of doing this, the SIT has acted like

a super court dissecting every bit of evidence, turning

and twisting it, ignoring relevant material and accepting

uncorroborated irrelevant material to somehow

whitewash this entire exercise. Worse the SIT has

deliberately and manifestly ignored the huge voluminous

evidence that is available on record. SIT has acted

beyond its jurisdiction as an Investigating Agency. In fact

this Honble Court ought to disregard the SIT Report

altogether and look at the gathered evidence

independently to arrive at the conclusion that cognizance

ought to be taken.


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f) Apart from anything it needs to be verified whether the

Closure Report is based on a collective application of

mind by SIT as a whole or not. Large number of

documents/ statements are in Gujarati. Admittedly they

have not been translated. Majority of the SIT members

cannot read Gujarati. In order to decide the weight to be

attributed to each of the statements/ document it was

necessary that the SIT, as a collective applied its mind to

these documents. In the absence of any translations it is

not clear as to how the SIT has come to the conclusions

it has arrived at.

g) The Petitioner submits that against each of the accused

there is sufficient material to take cognizance of offences

of conspiracy and abetment, subversion of public justice,

destruction and suppression of evidence, of rioting, theft,

robbery, murder, attempt to commit murder, etc. Besides,

against many of the accused Charge Sheets should have

also been filed for hate speech.

h) SIT should have considered that once a public servant is

held to be negligent in performing his duties, and if any

criminal offence has taken place, he ought to be

automatically charged with abetment. This is so because

the definition of abetment includes acts as well as

omissions. SIT has come to the conclusion that Accused

Nos - 33 then Joint Commissioner of Police MK Tandon

and then DCP Zone IV PB Gondia, were negligent in

their duties. Having arrived at this conclusion, SIT had no

option but to charge them with the criminal offence of

abetment at least as the negligence did result in offences

being committed or not being prevented.

i) SIT should have held that the statements and the

documents which have been gathered make out a clear

case of conspiracy against all including Accused No.1.

j) The Petitioner submits that as has been held by various

courts a conspiracy is usually hatched in secrecy and

very rarely there is direct evidence of this. The offence

can only be proved largely from inference drawn from


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acts or illegal omissions committed by the conspirators.

Even at the time of trial, there need not be proof of

express agreement. The agreement can be proved by

necessary implication. Besides, it is not necessary that all

the conspirators participate in all the offences resulting

from the conspiracy though they would be liable for each

one of them.

k) In the present case direct evidence exists in terms of

Sanjiv Bhatt s testimony about at least one part of the

conspiracy being hatched at the meeting held on

27.2.2002. Once this evidence is available it is for the

trial court to decide what weight to attribute to it. It is not

for the Investigating Agency to dissect this evidence with

a view to discredit the same.

l) In any event, without prejudice to whether Mr. Modi made

the statement attributed to him in the meeting on

27.2.2002 the fact that the meeting took place is not

disputed. One has to therefore to look at the subsequent

and prior events to decide as to what could have

transpired at this meeting. It is obvious that as the event

reflect a conspiracy was hatched at this meeting to allow

the people to vent their anger (justified or otherwise,

instigated or otherwise, organized or otherwise) and not

to intervene when offences are committed. In addition the

forces were encouraged to abet this ire and to assist the

people in venting it and at times to participate in it.

Anyone who tried to maintain law and order was

penalized. The conspiracy was very clear and played out

over the next few days.

m) The Petitioner further submits that the offences of

conspiracy and abetment along with the responsibilities

of public servants have, independently or together

introduced the concept of command responsibility under

our criminal law. Therefore any public servant shall be

criminally responsible for crimes committed by forces or

officers under his or her effective authority and control, as

a result of his failure to exercise control (preventive or

punitive) over these crimes. This would include the Chief


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Minister/ Home Minister, other Ministers, police and

bureaucratic top brass. This is more so since in the

present case they knew or owing to the circumstances at

the time, should have known that the forces were

committing or about to commit such crimes. It is further

because the said public servants failed to take all

necessary and reasonable steps to prevent or repress

their commission or to submit the matter to the

competent authority for investigation or prosecution.

n) The Chief Minister/ Home Minister was directly in charge

of law and order in the State. Under his aegis crimes

were committed. No steps were taken to curb these

crimes. Just to give an example, preventive arrests were

essential once the Bandh call was made. These are

required for prevent commission of offence. No such

arrests were made making the Home Minister

downwards all responsible for crimes having been

committed for failure to carry out preventive arrests.

Besides, if instructions were given to make preventive

arrests and they were not carried out then failure to take

steps against the officers for not having done preventive

arrests itself will amount to failure to discharge duties as

a public servant and abetment.

o) SIT has misdirected itself in looking at the allegations and

events in a piecemeal manner rather that a holistic

manner. What was needed to be done was to look at

events prior to 27.2.2002, on 27.2.2002 and subsequent

to 27.2.2002 to see if a common thread emerges. If this

was done an obvious and apparent link between all these

events and conduct of the accused comes out which

would be sufficient to charge them with conspiracy and

abetment, apart from other offences.

p) We further submit that offences under S.153 A and B

have been made out against accused who were charged

with the same in our complaint and the SIT ought to have

filed Charge Sheets in respect of the same.

Facts of the Protest Petition Narration

27.2.2002


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7.55 9 a.m.

32. The tragic train fire on the S-6 Coach of the Sabarmati Express

took place at 7.55 a.m. and was over by 8.13 a.m. at Godhra on

27.2.2002. This information about the Godhra incident was

conveyed by the district magistrate Godhra, Mrs. Jayanti Ravi to

Mr. Ashok Narayan, ACS Home, at 9 am and at the same time

chief minister Mr. Narendra Modi (A-1) and DGP Mr. K. Chakravarti

(A-25) were also informed. Therefore, by about 9 a.m. of 27.2.2002

both Mr. Ashok Narayan (A-28) and Mr. K. Nityanandam (A-34),

and Mr. Modi (A-1) had information about the said incident. In this

information it has been conveyed that it was the provocative

sloganeering and behavior of the karsevaks that had caused the

mob to gather and start pelting stones at the train. Independently,

through sources of the VHP other co-accused, Mr. Ashok Bhatt (A-

2), Mr. Gordhan Zadaphiya (A-5) and Mr Jaideep Patel (A-21) were

also informed of the incident.

33. The train arrived at Godhra 7.10 a.m. five hours late, stopped at the

station, proceeded again at 7.20 a.m. after which it was stopped

again a few minutes later about half a kilometer away from the

station. Mr. Narendra Modi (A-1) was informed of the Godhra

incident telephonically around 9 am (Malhotras report dated

12.5.2010 filed before the Honble Supreme Court und er Para

Allegatio n IV, Page 12)) from the Godhra district administration.

This communication (that appears to be only partial (plain white

paper torn apart and placed in the SIT records at Sr Nos 1 File

XLI Ann ex III) and it details the sequence of events resulting in the

burning of bogey No S-6 and killing of 59 persons.

34. The communication states that the train, the Sabarmati Express

arrived five hours late on that day reaching Godhra around 7.10

a.m. and also records that when the train left Godhra station at 7.20

hours on 27.2.2002 the karsevaks who were returning from

Ayodhya afterkarseva were shouting provocative slogans. This is

contained in a note in the SIT investigation papers. (See Sr Nos 1

File XLI An nex III).This note also mentions that after hearing

these provocative slogans, members of the Muslim community

residing in the nearby areas gathered and started pelting stones on

the bogey occupied by karsevaks. The train was stopped as per

this communication, at a place nearly half a kilometer further on the


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32

rail track in the direction of Vadodara, Signal Falia area, and there

the bogey caught/was set on fire.

35. The Mr P C Pande of ignition leading to the arson of S-6 bogey in

Sabarmati Express, as per this first message received by the state

admin at the state HQ from the Godhra district authorities,

establishes that the shouting of slogans had provoked the Muslim

community living around the area and in response they had started

pelting stones. This was an instantaneous reaction by a crowd

gathered after getting provoked by the slogans and other

provocative behavior of the karsevaks. The DM & Collector Godhra,

Mrs. Jayanti Ravi also states in her affidavit before the Nanavati

Commission dated 7.6.2002 at Annexure III, File X, D-106, that

immediately after she was informed by SP Godhra on 27.2.2002

regarding the incident on Sabarmati Express, she had informed the

Addl. Chief Secretary (Home), Gujarat Government, Principal

Secretary (Revenue) Gandhinagar and the Chief Ministers office

about the same.

36. This first information that is received from the district administration

is fully corroborated by another document at Serial Nos 11, File

XL1 Ann exureI II , Copy of fax m essage from A dl. DG (Int.) to

Ad dl. Chief Secretary, Home vide No.D-2/2/Com /Godhra

incident/70/2002dated 27.02.2002 regarding attack on Sabarmati

Express Train at Godhra Railway Station and actions taken by

police. This message independently indicates and establishes that

the karsevaks were shouting slogans after which the Muslims living

nearby the area congregated and pelted stones on the train after

which Coach no.S-6 caught/was set on fire. This second document

is based on information received by ADGP-Intelligence at

Gandhinagar from their branch office at Godhra and sent by DCP-

Intelligence, Mr. Sanjiv Bhatt. (The SIT Index describes this as a

Copy of a Fax Message from ADGP-Int to ACS Home. (Accused

Nos 28 Ash ok Narayan sent v ide nos D-2-2/COM/Godhra

Incid ent/ 70/2002 dated 27.2.2002). This report confirms the first

report received by the State headquarter from the Godhra District

Administration.

37. The Home Department whose political head is and was in 2002,

Accused No 1 Mr. Modi and whose administrative head, is Accused

No 34, then Home Secretary Mr. K. Nityanandam, would


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33

automatically also receive information from the SPs and DMs of all

districts, by fax and personal phone calls. As per the law and

procedure as laid down, and as detailed by Accused No 28, Mr.

Ashok Narayan in his deposition to the Nanavati Commission

annexed at Annex ure III, File XV, D-151in the SIT papers, there is

a separate control room in the Home Department where the DGP

(Accused No 25 Mr. K. Chakravarti) would forward all critical and

important information received by it.

Between 9-10.30 a.m. 27.2.2002.

38. At 10.30 a.m. a meeting had taken place at the residence of

Accused No 1 at Gandhinagar. In the said meeting Gordhan

Zadaphiya, (Accused No. 5), Ashok Narayan (Accused No. 28), K

Chakravarti (Accused no 25) and PC Pande (Accused No. 29) and

other Zadaphia of the chief ministers secretariat were present.

39. Before this official meeting following the Godhra incident could

take place, however, Accused No. 1 had in the first instance,

already called Mr Jaideep Patel (Accused No. 21) from the mobile

of his PA (09825037439). There was another call made by Accused

No. 1 to Mr Jaideep Patel on his mobile at Mobile No.

09825023887. Mr Jaideep Patel, who was at that time at Naroda,

left that place for Godhra and reached Godhra around 1 p.m. The

moment the Chief Ministers Office (CMO) and the Gujarat Home

Department also headed by Accused No.1 received information of

the Godhra incident at Gandhinagar, and this was obviously

conveyed to Accused No. 1, he makes a telephone call using the

mobile phone of his PA, AP Patel (09825037439) to his collaborator

and chief executor of the conspiracy Accused No. 21 Mr Jaideep

Patel (09825023887) first at 9:39:38 (77 seconds), then again at

9:41:39 (20 seconds). That is, within minutes of Accused No. 1

receiving official intimation of the Godhra tragedy, he (chief

minister) gets in touch with none less than the Secretary of the

Gujarat unit of the VHP, Mr Jaideep Patel.

Call

Type

Cell-No

(Name)

Duration

Secs

Date-Time Dialed / Received No

Name


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Outgoing 9825037439

A P Patel

(Accused No 1,

Mr Modi)

77 27.2.2002

09:39:38

9825023887

Mr Jaideep Patel VHP

General Secretary

(Accused No 21)

Outgoing 9825037439

A P Patel

(Accused No 1,

Mr Modi)

20 27.2.2002

09:41:39

9825023887

Mr Jaideep Patel VHP

General Secretary

(Accused No 21)

40. These phone calls in quick succession soon after he receives

knowledge of the Godhra tragedy is significant and evidence of A-1

speaking and conferring with the VHPs front man, who in Naroda

at the time of the call thereafter left for Godhra. There was,

therefore, a direct contact between the Chief Ministers Office

(CMO) and VHP even before Accused No. 1 Mr Modi met with his

officials after receiving news of the Godhra incident, or attended the

Vidhan Sabha, or left for Godhra clearly establishing that plans for

the conspiracy for the orchestration of the post-Godhra violent

reprisals was being carefully hatched. (See An nex ure IV, File V inthe SIT papers).

41. Only after first speaking to his co-conspirators did the chief minister

(Accused No. 1) call a meeting at his residence at about 1030 hrs

at which meeting he discussed the matter with Mr. Gordhan

Zadaphia (Accused No 5), the then Minister of State (MOS) for

Home, Ashok Narayan, the then ACS, Home (Accused No 28), K.

Chakravarti, the then DGP (Accused No 25), P.C. Pande, the then

CP, Ahmedabad City (Accused No 29) and other Zadaphia of the

CMs secretariat. Mr. Ashok Narayan stated to the SIT that until

then no news had been received about the exact number of

casualties and the information was being received piecemeal.

42. On instructions of A-1, Ashok Bhatt (A-2) also leaves Ahmedabad

and reaches Godhra around 1 p.m. (Statements to the media

officially released by A-21 Mr Jaideep Patel and A-19 Kaushik

Mehta also an office bearer of the VHP also provoke and distort

facts. This is done with the full knowledge of A-1.) Curfew was

declared at about 10 a.m. in the Godhra town.

43. A-21 Mr Jaideep Patel has shown his criminal intent being part of

the conspiracy hatched by A-1 Mr Modi and himself. A fax message


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recorded by the State Intelligence Bureau (SIB) (Annexure III, File

XVIII-D-160 at 188 dated 27.2.2002 states that A- 21 Mr Jaideep

Patel, A- 19 Kaushik Mehta, also senior functionary of the VHP and

Dilip Trivedi another general secretary of the VHP had, in a joint

statement issued by them declared that hundreds of Ram sevaks

had been attacked in a preplanned conspiratorial attack, that

compartments set on fire and women molested. This message

coming from Vadodara are proof that such misinformation and

provocative sloganeering had begun and had been allowed at

Godhra. The remarks in this message says that though no such

incident as alleged has happened (molestation of women) and also

says that such propaganda has been recklessly made. The SIT

could have scrutinized such records to ascertain the build up to the

conspiracy. This message also suggests that a written statement

may have been issued by the VHP. Why has SIT not bothered to

look into such material at all?

44. There is absolutely no discussion in the SIT report about what

transpired between 9 a.m. to 10.30 p.m. and Accused No. 1s role

therein. The crucial evidence related to the calls made by A-1 to

fellow conspirators and co-accused during that time have been

completely omitted/ignored.

10.30 hours 27.2.2002

45. On the decision taken by Accused No. 1, Mr Jaideep Patel and

Ashok Bhatt had left for Godhra. It is important that Mr Jaideep

Patel who was general secretary of Vishwa Hindu Parishad (VHP)

Gujarat which is a sister organisation of the ruling Bhartiya Janata

Party (BJP), whereas Minister for Health, Ashok Bhatt, was a senior

member in the Gujarat cabinet at the time. It is at this meeting that

a collective decision was taken to distort the facts sent by the DM

regarding the provocative sloganeering and behavior of the

karsevaks. On the basis of this collective decision a Note was

prepared by the Home Secretariat -- A-28, Mr. Ashok Narayan, and

A-34. Mr. Nityandandam, headed by A-5 Mr. Gordhan Zadaphiya

and A-1 Mr. Narendra Modi.

46. In what appears to be a deliberate move, (SrNos 5, D-196, File XLI

Annexure III) the message prepared by the Home Department

headed by Accused No 1 (Mr. Modi) and Accused No. 34 (Mr.


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36

Nityanandam) and Accused No. 28, (Mr. Ashok Narayan)

suppressed this critical aspect of the information relating to the

provocation of the karsevaks by shouting humiliating anti-Muslim

slogans and through this the mens rea behind the crime of pelting

of stones by the mob on the S-6 bogey. It was on the basis of the

note of the home department, not the first information originally sent

by the Godhra district administration, that Accused No. 1 (Mr. Modi)

and Accused No. 5 (Mr. Zadaphiya) made their statements before

the State Assembly at 1300 hours.

47. This was done with a view to obfuscate the provocative and

incendiary behaviour of the karsevaks/rambhaktas. (The Court

should ask for examination of the Case Diary of the Godhra Train

Fire Investigation from the Registration of FIR onwards to be able

to examine what was stated in the FIR in the first instance and

alterations made thereafter).

48. This meeting has not been dealt with by the SIT The note sent by

the DM and how it was diluted/manipulated by the Home

Secretariat becomes important because it was on that basis that

misleading information leaving aside the provocat ive behavior of

the karsevakswas given to the Assembly.At this stage, there are

statements collected by SIT that suggest that A-1 spoke to the

media. But just like in the case of other speeches made by A-1, SIT

has completely avoided looking into this.

49. It appears clear that from the go-ahead signal given by the chief

mastermind (Accused No. 1) to chief executor, Mr Jaideep Patel

(Accused No. 21) to unleash a communal backlash, that a plethora

of phone calls are exchanged between the co-conspirators (see

table below). Hence from the afternoon of 27.2.2002 itself, violent

attacks on the minority are unleashed. Yet no emergency

instructions, alerts or steps are taken by the seniors in the

administration to contain or prevent violence. Incidentally, records

from the State IB contained in An nexure III File XIX (D-161)at

Pages 67-68 of the SIT papers, independently show thatone

person named Abdul Rashid Kalubhai Mashita Shaikh was

assaulted by some karsevaks who came from Baroda train

between platforms 2 and 3. Abdul Rashid died and another two

persons were injured. The karsevaks were recorded to be shouting

slogans. This message of the State IB was sent at 1500 hrs on


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27.2.2002, i.e., even while senior cabinet ministers were at Godhra,

the Chief Minister had not yet left by air for Vadodara (See

Annexure IV, File IX, Serial Nos 250, the daily Itinerary of

Accused No. 1 and the flight schedule in SIT Papers) , violent

incidents in retaliation leading to the deaths had already begun.

Moreover, they were provoked by the unruly and aggressive

karsevaks who had been aggressively attacking members of the

minority community even before the Sabarmati Express train had

reached Godhra, five hours late on 27.2.2002. This violence

continues and is allowed even as the train proceeds towards and

reaches Ahmedabad Railway station in the sensitive Kalupur area

on the afternoon of 27.2.2002 while the chief conspirator is on his

way to Godhra.

1300 hours 27.2.2002

50. The Assembly proceedings started at 1300 hours. A Motion relating

to Godhra incident was moved by Mr. Punjabhai Vansh which came

up for discussion at 1300 hours. It was however Accused No. 16,

Dr. Maya Kodnani, M.L.A. from Naroda and co-conspirator (now

convicted to 28 years life imprisonment for executing the

conspiracy at Naroda Patiya by a judgement of the Sessions Court

dated 29.8.2012), who spoke on the issue and her speech raised

unsubstantiated issues related to the ill-treatment of women by

Muslims at Godhra (She states, Women treated very badly..).

On 27.2.2002, in a planned way such disinformation was spread tto

ensure and enable that the Godhra incident does not stay localized

but is malevolently used to foment widespread violence, which is

not spontaneous but fuelled by a rabid organization like the VHP

with the full support of A-1 and his administration. A-21 Mr Jaideep

Patel has through his organization the VHP also made the same

untruthful claims to the media along with A-19 Mr Kaushik Mehta,

also of the VHP and Mr Dilip Trivedi, secretary of the VHP in

Mehsana the same day. (The same Dilip Trivedi is appointed by the

Gujarat government under A-1 to be the special public prosecutor

in the Sardarpura and Deepda Darwaza cases, making a mockery

of the justice process and substantiating charges in this complaint

about the A-1 using the tool of partisan public prosecutors as part

of a conspiracy to subvert the deliverance of justice. The SIT has

turned a blind eye to these obvious facts and refused to make the

obvious connections and draw the necessary conclusions.


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38

51. This statement needs to be seen in the context of the deliberate

inflammatory rumours spread by VHP persons accosting DM Ravi

when she reached the site of the tragedy in Godhra. Later the

Sandesh newspaper also published fabricated reports that

effectively provoked mob reactions and despite strong

recommendations from three separate sources in the Gujarat

police, Accused No. 1 as home minister instead of prosecuting

such coverage actually congratulated the newspapers. (see

Statement and Deposition) where Mrs Ravi states that these were

false reports. (Ann exu re III, File II, D-6 and An nexure II, File IV,

D-50, Vidh an Sabh a Proceed ing s dated 27.2.2002 & 28.2.2002,

14.3.2002, produced by Suresh Mehta former Minister in the Modi

cabinet and Gordhan Zadaphiya, then MOS Home (Accused No. 5

in the complaint).

52. Zadaphia read out the statement prepared by Home Department,

based on the available information, which as explained above, had

omitted crucial bits of information relating to the provocations

caused by karsevaks. Suresh Mehta, Minister of Industries, was

present in Vidhan Sabha sitting next to Modi when Zadaphiya was

reading the Note. I was sitting by the side of Mr. Narendra Modi,

CM who remarked that "Hindus should wake up now". (Statement

made by Suresh Mehta on 15.8.2009 to th e SIT at Annexure I

Volume I, Pages 83-84). The Chief Minister Accused No. 1) went

to Godhra by helicopter on the same afternoon. Mr. Gordhan

Zadaphiya, MoS (Home) also left for Godhra by road. The CM

returned to Ahmedabad in the night. Subsequently, Suresh Mehta

states that he learnt that a review meeting of the situation post-

Godhra incident was held by the CM on 27.2.2002 night with the

senior officers and this fact related to the review meeting held by

the CM with top officers had also been admitted by Zadaphiya in

the assembly on 14-3-2002 according to the minutes.

53. The Note prepared by the Home department and the facts relayed

by Zadaphiya to the State Assembly make no mention of the motive

behind the stone pelting by a crowd that suddenly gathered which

was the provocative and incendiary behavior of the karsevaks.

Accused No. 1 in his response to the discussion on 27.2.2002 (see

Assembly proceedings at Annex ure III, File II, D-6 and

An nexu re II, Fi le IV, D-50, Vidhan Sabha Proc eedings dated


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27.2.2002 & 28.2.2002, 14.3.2002) already hints at a sinister

design, the train came, it stopped, then it left and the time-gap

between the same is merely 3 to 5 minutes and suddenly attack of

this kind was launched. In such a situation, the issue becomes

grave Both A-1 and A-5 clearly state that the incident at Godhra

was the result of a long term conspiracy.

54. These statements that go beyond the scope of the knowledge

available at the given time would also amount to a breach of

privilege of the state assembly (misinforming members) since the

district administration had clearly stated that the stone attack and

subsequent arson was a result of the outcome of provocative

slogan shouted by karsevaks.

55. The SIT only deals with the brief statement made by Mr Gordhan

Zadaphiya and does not Pande out that Maya Kodnani (A-16) also

made a speech. The SIT does not even attempt to link the reaction

as alleged in the statement of Mr. Suresh Mehta with subsequent

conduct of A-1 including ordering hasty and illegal post mortems in

the open railway yard, in violation of curfew orders while a violent

and aggressive crowd of VHP, RSS and B

protest petition part i

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